The Albany Law Journal.

ALBANY, JANUARY 26, 1884.

CURRENT TOPICS.

not elevate the individual, but it would elevate the popular idea of law and of the court. Else why have any forms at all? Why have a formal proclamation on opening court, for example? The argument that judges should not wear gowns because some judges are notoriously unlearned, weak or corrupt, is certainly very irrelevant and inconclusive. That is a

the Denver Law Journal do not approve of gowns for judges. And yet our good friends, who cannot be any thing less than "colonels" or "majors "in their own country- we beg pardon if we have not put them high enough - would scorn to be seen on State occasions without their regimentals. Why this distinction? The Review says, in its "Notes," which, by the way, are the most readable law journalism that comes to us that "the proposal that the judges should wear gowns in order to put them in harmony with their surroundings will probably not be adopted. If judges were appointed to hold their office during good behavior, as the judges of the Federal courts, the suggestion would not be inappropriate. But there is something so entirely out of keeping between a gowned judge, nominated to his office by a political caucus, and elected by a party vote, and the process by which he arrived at his dignity, that the very suggestion moves laughter. With what utter contempt would Boss Kelly look in upon a bench of elective judges robed in gowns!" We think just the other way. We think that gowns would lead such men to took upon courts with less familiarity and contempt. The Journal says: "We ask (purely for information) will the putting of judges into gowns make them abler, more learned, and more honest?" Assuredly not, but it will make them more respected by the mass of mankind, who view forms with awe. But the Journal continues: "If the judge be one whose character and personal qualities do not demand such reverence, no solemn, black robes, no horse-hair wig, no ermine, and no fines for manifesting that want of respect which is produced by the conduct and character of the official, will ever compel respect for the office, or seat he occupies. We may regret that our people are so constituted, but such is the fact. This condition of things cannot be improved by adopting foreign customs. Our people have an innate abhorrence of show and shams. Pomp and parade in courts, and elsewhere, would create a ripple of curiosity and attract crowds for a few days. It would not tend to increase the proper respect for our courts of justice in their present condition, when the judicial bench is, in many cases, occupied by men notoriously unfit for their position, rendering their courts places wherein not justice, but injustice, is judicially administered. We cannot see that the adoption of the gown, as a judicial robe, will remedy this evil. Such a dress might flatter the vanity or increase the self-conceit of a shallowpated occupant of the judge's chair, but it will add nothing to the respect which his decision will command." The error that the Journal falls into is in treating the matter as personal. The gown might VOL. 29-- No. 4.

but no argument against putting gowns on the judges. It would not hurt our western communities if their courts were held in higher respect. We should then hear less of lynch law. Better have judges in gowns than lynchers in masks. Still it is true, as the court observe in Dyett v. Pendleton, 8 Cow. 737-(as a correspondent points out to us)— that "judicial robes can never inspire confidence if the sense of right and wrong is not manifested."

They are also afraid of gowns in Italy. A judgment has been given in an interesting case before the Court of Appeal at Turin. Miss Lydia Poet, who has obtained a doctor's degree in law, was refused admittance to the roll of advocates for reasons among which are the following: "The Italian law has made no disposition expressly consenting to the exercise of the profession of advocate by women, and it has always regarded that profession as exclusively pertaining to men. The admission of women would be extraordinary and contrary to custom, and is besides expressly forbidden by an article of common law (article quoted.) It would be an unpleasing sight to see a woman pleading amid the tumult of a public court, and sometimes obliged to treat ex professo questions that common decency forbids even men to discuss in the presence of honest' women. The sight of the toga worn over the strange and whimsical dress which fashion often imposes upon women would imperil the gravity of the judges. Every time the balance of justice leaned to the side of a prisoner defended by a pretty female advocate the judges would be exposed to suspicion and calumny." "The Court of Appeal also held that that was neither the time nor the place to discuss the equality of women and their right to exercise all professions and offices hitherto occupied exclusively by men. It is said that a lady recently asked one of our judges if they were going to put on gowns. He said yes. "But when?" "At night,"

was the reply.

The intelligence of the death of Mr. John William Wallace, of Philadelphia, will be received with regret. Mr. Wallace was well known to the profession as the former reporter of the United States Supreme Court, twenty-three volumes of which reports, commencing in 1864, he edited. He was also the author of that delightful and instructive work, "The Reporters." He also edited six volumes of "British Crown Cases Reserved." Mr. Wallace was born in Philadelphia, February 17, 1815. His father was John Bradford Wallace, who was a distinguished legal contemporary of Binney, Sergeant and

Chauncey, and his mother was a sister of the eldest Horace Binney. Mr. Wallace was graduated by the University of Pennsylvania in 1833, and was admitted to the bar October 27, 1836.

That was a very clever hit of the Canada Legal News concerning the alarm felt by the English bench at the innovations imported from this country and proposed by the Lord Chief Justice. The News says: "His brother judges even seem to have caught the alarm, and they hold out sturdily against any hint of innovation, for we read that at a meeting of the English judges, held at the Royal Courts of Justice on Tuesday, December 11, 'the proposal of Lord Chief Justice Coleridge, that the courts should either sit half an hour earlier in the morning or the same time later in the afternoon, was voted down by a large majority.""

the case of Hallenbeck v. Danell, the Court of Appeals yesterday handed down a decision reversing an order appointing a receiver upon those grounds, and sustaining and approving the position of Mr. Leavitt. I have not yet seen the opinion, but the order must, I apprehend, have been reversed upon the ground that the court had no power to appoint a receiver. I was counsel for the appellant in the case. I am under much obligation to your valuable JOURNAL for the article named, for therein I first got the idea on which I took my appeal." And a gentleman writes us from Honolulu: "I like the JOURNAL very much. It is a weekly comforter to me in this place, where I miss some home legal privileges. For two years past I have been second associate justice of the Supreme Court of the islands, and in several cases I have found the JOURNAL very useful to me. I have usually approved your personality in it. Trusting you may long remain its editor," etc.

In England the last year seems to have been prolific in legal literature. The London Law Journal says: "In the past year 139 new books and 84 new editions are attributed to law jurisprudence, etc,' as against 52 and 23 respectively in the year before. In other words, more than three times the law books were published in 1883 than in 1882, an increase unequaled in any other class of literature. Probably the term 'law jurisprudence, etc,' has been more liberally construed in 1883 than in 1882, as we find that only 144 new books and editions were reviewed in these columns last year, as against 121 the year before, the latter number being 46 more books than were attributed to 'law jurisprudence, etc,' in that year, while last year the number reviewed is less by 84. Still there has, no doubt, been a considerable development. There may be other causes for it, such as the enterprise of new publishers until recently unknown to the precincts of Chancery Lane; but the main cause is that the junior bar have largely taken to book-writing as a resource. An increase in legal literature is a clear sign of a decrease in legal business." We believe that the year was unusually productive of legal literature in this country also, and perhaps from the same cause. In the last two volumes of this journal we find 70 notices of new text-books.

A correspondent writes us: "In the ALBANY LAW JOURNAL of April 8, 1882, you published an article written by John Brooks Leavitt, in which he contends that there is not under the provisions of the Code of Civil Procedure any power in the Supreme Court to appoint receivers of rents and profits in mortgage foreclosure proceedings for inadequacy of the security and insolvency of the mortgagor. In

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The annual address by the president of the Illinois State Bar Association, delivered on the 3d inst., by Mr. William L. Gross, is a very pleasant and graceful production. Mr. Gross deplores the reluctance of lawyers to associate with their brethren; this is the text of his discourse. He says, of the lawyer's tendency to withdraw into himself: "This tendency, of which we are speaking, is manifested differently in different individuals. Sometimes shelter is taken behind the lawyers' books and briefs, and there is little or no disposition to cultivate the graces and amenities of social life. such a man his books become his constant companions and friends, and he soon learns to turn to them with the eagerness and confidence of a lover to his mistress. In imagination he feels himself surrounded by the noble minds that have honored and adorned our profession; and if at times he feels kindling within him the fires of an ambition that would lead him to emulate their virtues and win the imperishable renown which is theirs, while the thought may ennoble and purify his spirit, its outward manifestation would be a still greater shrinking from intercourse with the living, and he would become a social recluse. That man would feel better acquainted with Marshall, Kent, Story and Walworth than with the justices of the Supreme Court of his own State; and he would find keener enjoyment in contemplating a dead Wirt, Webster and Choate, than in listening to the impassioned eloquence of a living Storrs, Ingersoll or Weldon." Mr. Gross regrets this, but we can hardly think it strange that a reflective lawyer should prefer to resort to Webster and Choate than to the greatest of our living advocates, for they were models for all time; and so the study of Marshall, Kent and Story may instruct smaller men how to be good judges and commentators. Mr. Gross says there are 5,000 lawyers in Illinois.

really very amusing, for example, the lady's refusal to let a physician prescribe for her; and to sell a lot of land to the witness-probably because she refused to sell at his price; and to be introduced to another witness. These things, as Judge Cooley wisely remarks, "indicated will, even if wanting in wisdom." Miss Campau simply seems to have been an invalid, very nervous, very shy, very generous, and very pious.

In M Clure v. Commonwealth, Kentucky Court of Appeals, November 24, 1883, 7 Ky. L. Rep. and Jour. 468, it was held that on the trial of a boy under fourteen years of age for burglary, the court should of its own motion exclude improper testimony offered by the prosecution, and not objected to, and give proper instructions on the point of insanity, although there was no exception. The court, Hargis, C. J., said: "They were tried jointly and it does not affirmatively appear that they had an attorney present and watching their interest during the whole of the trial, for two things occurred which he certainly would have objected to had he been present when they were done. But in his absence or failure to oppose all illegal action by the Commonwealth's attorney, it was the court's duty, of its own motion, without objection or exception from any one, to protect these children from all illegal proceedings. The court permitted proof of the bad character of Fred. Woosley, the elder brother above-mentioned, who was a man grown, that he was a fugitive from justice, and that their mother keeps a house of ill fame and that Jo. lived with her. There is nothing more natural than for a boy of his age to live with his mother, no matter what she does. And there is no more illegal proceeding than to try the appellant by the character of Jo.'s mother, or either one of them by the character of Fred. or the mother, for even upon the trial of either of the latter upon such a charge as this, their characters could not be legally proven by the Commonwealth against their objection. * * The evidence clearly preponderates to the conclusion that the appellant was not of sound mind. He would drop down the sidewalk or platform whenever sleep came upon him, and there like the waif that he was, sleep the sleep of the innocent or unconscious, under no guard but the All Seeing Eye which watched over him. At home, if he had what might be termed a home in the proper sense of the word, he would lie down on the hearthstone or floor and take his sleep instead of repairing to such beds as his parents had. He would fly into a passion on an instant without provocation and straightway become affectionate and fondling. But no instruction upon this feature of his case was given as it should have been sua sponte by the court, on account of his tender years, and the duty of the court to see to it that his rights were carefully guarded and protected. He was entitled to an instruction on insanity as well as on the presumption of law in his favor based on his age. It would be

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strange law indeed if the courts were required to protect an infant when only his property was at stake, yet leave him to the tender mercies of a Commonwealth's attorney, who illegally traveled out of the record in search of arguments to secure his conviction for a crime which would consign his person to a dungeon, his name to infamy and his young life to associations which would blur and distort it forever. This is not law in this country, and we cannot give the seal of our approval to such a judgment so obtained, although no objections or exceptions were taken to the conduct of the Commonwealth's attorney, or the admission of illegal evidence. Willet v. Commonwealth, 13 Bush, 230."

Free v. Buckingham, 59 N. H. 219, is interesting on the question of religious faith as a requisite for a competent witness. The court said: "There was no error of law in the referee's refusal to allow the plaintiff, Mr. Free, to be asked, on cross-examination, whether the spirit of Daniel Webster was present aiding him in the trial, and whether he had been assisted by departed spirits in obtaining information of his defense. Nor would it have been error of law to allow those questions to be put. It was a question of fact how far the proposed inquiry could usefully go for the purpose of discovering the credit of the witness. His testimony or other evidence might have been of such a character that light would be thrown upon it by a disclosure of his spiritualistic faith or practice; and his testimony and the case might have been such that there was no occasion to call for any disclosure on that subject. It is not claimed that the peculiarity of Free's religious belief affected his capacity as a witness, but only his credibility. Upon cross-examination, a witness may be asked any questions which tend to test his accuracy, veracity, or credibility, or to shake his credit by injuring his character; and to this end his way of life, his associations, his habits, his prejudices, his mental idiosyncracies (if they affect his capacity), may all be relevant. art. 129; 1 Greenl. Ev., § 446. mary in modern practice to permit an a man's peculiarity of religious belief. This is not because the inquiry might tend to disgrace him, but because it would be a personal scrutiny into the state of his faith and conscience contrary to the spirit of our institutions. N. H. Bill of Rights, arts. 4, 5; Const. of U S., First Amendment. A man is competent to testify who believes in the existence of God, and that divine punishment, either in this life or in the life to come, will be the consequence of perjury. Clinton v. State, 33 Ohio St. 27. No judicial tribunal is bound to inquire, nor ordinarily will inquire, whether a witness be a Protestant or Romanist, Trinitarian or Unitarian, a Shaker, Mormon, Jew, or Gentile, a Spiritualist or a Materialist. Defect of religious faith is never presumed. The question whether a person is disqualified to testify by want of belief in God and punishment for perjury, is a question of fact for the determination

Steph. Dig. of Ev., But it is not custoinquiry into